War on the Enemy: Self-Defence and State-Sponsored Terrorism

Maogoto, Jackson Nyamuya, Melbourne Journal of International Law

[Under international law, internal mechanisms have provided the appropriate responses to terrorist acts. The weakness of domestic criminal law is, however, evident in the face of transnational terrorist groups whose operations spreads across many borders. The challenge is compounded when states actively or passively support terrorism. Though traditionally state responsibility has been the vehicle through which pressure is exerted on states sponsoring terrorism, the lethal capabilities of terrorists demonstrated by the 11 September 2001 attacks has fundamentally changed the landscape. The consequences of breaches arising out of a failure by a state to effectively curtail terrorist organisations based or operating out of its territory have expanded sharply, permitting not just financial reparations or other traditional benign countermeasures, but even the extensive use of deadly military force. With the linkage between the terrorist and the sponsoring state becoming crucial to providing states with the justification for a response against rogue states, this article discusses the issue of state-sponsored terrorism and the use of military force in combating terrorism in the context of the UN Charter regime on the use of force.]

CONTENTS
I Introduction
II Defining Terrorism
III Anatomy of State-Sponsored Terrorism
A Defining State-Sponsored Terrorism
B ICJ Jurisprudence and the Declaration concerning Friendly
Relations
IV Countermeasures against Terrorism
V Terrorist Acts and the UN Charter Regime on Force
A Article 2(4) and the Prohibition of the Use of Force
B The Move towards the Legitimate Use of Force against
Terrorism
C Self-Defence in the Context of Terrorism
VI Expanding the Definition of an Armed Attack
VII State-Sponsored Terrorism and Armed Attacks
VIII Conclusion

I INTRODUCTION

The tragic events of 11 September 2001, prompted the international community to examine international terrorism anew. The magnitude of the acts went beyond terrorism as it was known, and statements from various capitals around the world pointed to a need to develop new strategies to confront a new reality. The response of the United States (with the active support of the international community) was to launch a broad assault on al-Qaeda and its host government, the Taliban regime of Afghanistan. The attacks of September 11, the US response and the international community's approval of the military action represent a new paradigm in international law relating to the use of force. Previously, acts of terrorism were seen as criminal acts, carried out by private, non-governmental entities. In contrast, the September 11 attacks were regarded as an act of war. This effectively marked a turning point in the long-standing premise of international law that force, aggression and 'armed attacks' are instruments of relations between states. Terrorism was no longer merely a serious threat to peace and stability to be combated through domestic and international penal mechanisms--use of force was now an avenue for managing the consequences of terrorist strikes.

This paradigm-shifting event generated a new dimension in international legal and political debate. Though international discourse on terrorism is abundant and terrorism continues to be the subject of sustained debate, the attacks of September 11 elevated the discourse to another level. The attacks instigated the momentum for the international legal system to co-opt military responses to counter terrorism within the regime of lawful force contained in the Charter of the United Nations. Many of the strict requirements of Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US) (Merits) (1) which considered the issue of state responsibility in light of international norms on the use of force, are now being challenged, infusing art 51 of the UN Charter with a new focus. …

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